[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR214.15]

[Page 380-383]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 214_NONIMMIGRANT CLASSES--Table of Contents
 
Sec. 214.15  Certain spouses and children of lawful permanent residents.

    (a) Aliens abroad. Under section 101(a)(15)(v) of the Act, certain 
eligible spouses and children of lawful permanent residents may apply 
for a V nonimmigrant visa at a consular office abroad and be admitted to 
the United States in V-1 (spouse), V-2 (child), or V-3 (dependent child 
of the spouse or child who is accompanying or following to join the 
principal beneficiary) nonimmigrant status to await the approval of:
    (1) A relative visa petition;
    (2) The availability of an immigrant visa number; or
    (3) Lawful permanent resident (LPR) status through adjustment of 
status or an immigrant visa.
    (b) Aliens already in the United States. Eligible aliens already in 
the United States may apply to the Service to obtain V nonimmigrant 
status for the same purpose. Aliens in the United States in V 
nonimmigrant status are entitled to reside in the United States as V 
nonimmigrants and obtain employment authorization.
    (c) Eligibility. Subject to section 214(o) of the Act, an alien who 
is the beneficiary (including a child of the principal alien, if 
eligible to receive a visa under section 203(d) of the Act) of an 
immigrant visa petition to accord a status under section 203(a)(2)(A) of 
the Act that was filed with the Service under section 204 of the Act on 
or before December 21, 2000, may apply for V nonimmigrant status if:
    (1) Such immigrant visa petition has been pending for 3 years or 
more; or
    (2) Such petition has been approved, and 3 or more years have passed 
since such filing date, in either of the following circumstances:
    (i) An immigrant visa is not immediately available to the alien 
because of a waiting list of applicants for visas under section 
203(a)(2)(A) of the Act; or
    (ii) The alien's application for an immigrant visa, or the alien's 
application for adjustment of status under section 245 of the Act, 
pursuant to the approval of such petition, remains pending.
    (d) The definition of ``pending''. For purposes of this section, a 
pending petition is defined as a petition to accord a status under 
section 203(a)(2)(A) of the Act that was filed with the Service under 
section 204 of the Act on or before December 21, 2000, that has not been 
adjudicated. In addition, the petition must have been properly filed 
according to Sec. 103.2(a) of this chapter, and if, subsequent to 
filing, the Service returns the petition to the applicant for any reason 
or makes a request for evidence, the petitioner must satisfy the Service 
request within the time period set forth at Sec. 103.2(b)(8) of this 
chapter. If the Service denies a petition, but the petitioner appeals 
that decision, the petition will be considered pending until the 
administrative appeal is decided by the Service. A petition rejected by 
the Service as not properly filed is not considered to be pending.
    (e) Classification process for aliens outside the United States-- 
(1) V nonimmigrant visa. An eligible alien may obtain a V nonimmigrant 
visa from the Department of State at a consular office abroad pursuant 
to the procedures set forth in 22 CFR 41.86.
    (2) Aliens applying for admission to the United States as a V 
nonimmigrant at a port-of-entry. Aliens applying under section 235 of 
the Act for admission to the United States at a port-of-entry as a V 
nonimmigrant must have a visa in the appropriate category. Such aliens 
are exempt from the ground of inadmissibility under section 212(a)(9)(B) 
of the Act.
    (f) Application by aliens in the United States. An alien described 
in paragraph (c) of this section who is in the United

[[Page 381]]

States may apply to the Service to obtain V nonimmigrant status pursuant 
to the procedures set forth in this section and 8 CFR part 248. The 
alien must be admissible to the United States, except that, in 
determining the alien's admissibility in V nonimmigrant status, sections 
212(a)(6)(A), (a)(7), and (a)(9)(B) of the Act do not apply.
    (1) Contents of application. To apply for V nonimmigrant status, an 
eligible alien must submit:
    (i) Form I-539, Application to Extend/Change Nonimmigrant Status, 
with the fee required by Sec. 103.7(b)(1) of this chapter;
    (ii) The fingerprint fee as required by Sec. 103.2(e)(4) of this 
chapter;
    (iii) Form I-693, Medical Examination of Aliens Seeking Adjustment 
of Status, without the vaccination supplement; and
    (iv) Evidence of eligibility as described by Supplement A to Form I-
539 and in paragraph (f)(2) of this section.
    (2) Evidence. Supplement A to Form I-539 provides instructions 
regarding the submission of evidence. An alien applying for V 
nonimmigrant status with the Service should submit proof of filing of 
the immigrant petition that qualifies the alien for V status. Proof of 
filing may include Form I-797, Notice of Action, which serves as a 
receipt of the petition or as a notice of approval, or a receipt for a 
filed petition or notice of approval issued by a local district office. 
If the alien does not have such proof, the Service will review other 
forms of evidence, such as correspondence to or from the Service 
regarding a pending petition. If the alien does not have any of the 
items previously mentioned in this paragraph, but believes he or she is 
eligible for V nonimmigrant status, he or she should state where and 
when the petition was filed, the name and alien number of the 
petitioner, and the names of all beneficiaries (if known).
    (g) Period of admission-- (1) Spouse of an LPR. An alien admitted to 
the United States in V-1 nonimmigrant status (or whose status in the 
United States is changed to V-1) will be granted a period of admission 
not to exceed 2 years.
    (2) Child of an LPR or derivative child. An alien admitted to the 
United States in V-2 or V-3 nonimmigrant status (or whose status in the 
United States is changed to V-2 or V-3) will be granted a period of 
admission not to exceed 2 years or the day before the alien's 21st 
birthday, whichever comes first.
    (3) Extension of status. An alien may apply to the Service for an 
extension of V nonimmigrant status pursuant to this part and 8 CFR part 
248. Aliens may apply for the extension of V nonimmigrant status, 
submitting Form I-539, and the associated filing fee, on or before 120 
days before the expiration of their status. If approved, the Service 
will grant an extension of status to aliens in V nonimmigrant status who 
remain eligible for V nonimmigrant status for a period not to exceed 2 
years, or in the case of a child in V-2 or V-3 status, the day before 
the alien's 21st birthday, whichever comes first.
    (4) Special rules. The following special rules apply with respect to 
aliens who have a current priority date in the United States, but do not 
have a pending application for an immigrant visa abroad or an 
application to adjust status.
    (i) For an otherwise eligible alien who applies for admission to the 
United States in a V nonimmigrant category at a designated Port-of-Entry 
and has a current priority date but does not have a pending immigrant 
visa abroad or application for adjustment of status in the United 
States, the Service will admit the alien for a 6-month period (or to the 
date of the day before the alien's 21st birthday, as appropriate).
    (ii) For such an alien in the United States who applies for 
extension of V nonimmigrant status, the Service will grant a one-time 
extension not to exceed 6 months.
    (iii) If the alien has not filed an application, either for 
adjustment of status or for an immigrant visa within that 6-month 
period, the alien cannot extend or be admitted or readmitted to V 
nonimmigrant status. If the alien does file an application, either for 
adjustment of status or for an immigrant visa within the time allowed, 
the alien will continue to be eligible for further extensions of V 
nonimmigrant status as provided in this section while that application 
remains pending.

[[Page 382]]

    (h) Employment authorization. An alien in V nonimmigrant status may 
apply to the Service for employment authorization pursuant to this 
section and Sec. 274a.12(a)(15) of this chapter. An alien must file 
Form I-765, Application for Employment Authorization, with the fee 
required by 8 CFR 103.7. The Service will grant employment authorization 
to aliens in V nonimmigrant status who remain eligible for V 
nonimmigrant status valid for a period equal to the alien's authorized 
admission as a V nonimmigrant.
    (i) Travel abroad; unlawful presence--(1) V nonimmigrant status in 
the United States. An alien who applies for and obtains V nonimmigrant 
status in the United States will be issued Form I-797, Notice of Action, 
indicating the alien's V status in the United States. Form I-797 does 
not serve as a travel document. If such an alien departs the United 
States, he or she must obtain a V visa from a consular office abroad in 
order to be readmitted to the United States as a V nonimmigrant. This 
visa requirement, however, does not apply if the alien traveled to 
contiguous territory or adjacent islands, possesses another valid visa, 
and is eligible for automatic revalidation.
    (2) V nonimmigrants with a pending Form I-485. An alien in V 
nonimmigrant status with a pending Form I-485 (Application to Register 
Permanent Residence or Adjust Status) that was properly filed with the 
Service does not have to obtain advance parole in order to prevent the 
abandonment of that application when the alien departs the United 
States.
    (3) Unlawful presence--(i) Nonimmigrant admission. An alien 
otherwise eligible for admission as a V nonimmigrant is not subject to 
the ground of inadmissibility under section 212(a)(9)(B) of the Act. 
This is true even if the alien had accrued more than 180 days of 
unlawful presence in the United States and is applying for admission as 
a nonimmigrant after travel abroad.
    (ii) Permanent resident status. A V nonimmigrant alien is subject to 
the ground of inadmissibility under section 212(a)(9)(B) of the Act when 
applying for an immigrant visa or for adjustment of status to that of a 
lawful permanent resident. Therefore, a departure from the United States 
at any time after having accrued more than 180 days of unlawful presence 
will render the alien inadmissible under that section for the purpose of 
adjustment of status or admission as an immigrant, unless he or she has 
obtained a waiver under section 212(a)(9)(B)(v) of the Act or falls 
within one of the exceptions in section 212(a)(9)(B)(iii) of the Act.
    (j) Termination of status--(1) General. The status of an alien 
admitted to the United States as a V nonimmigrant under section 
101(a)(15)(V) of the Act shall be automatically terminated 30 days 
following the occurrence of any of the following:
    (i) The denial, withdrawal, or revocation of the Form I-130, 
Petition for Immediate Relative, filed on behalf of that alien;
    (ii) The denial or withdrawal of the immigrant visa application 
filed by that alien;
    (iii) The denial or withdrawal of the alien's application for 
adjustment of status to that of lawful permanent residence;
    (iv) The V-1 spouse's divorce from the LPR becomes final; or
    (v) The marriage of an alien in V-2 or V-3 status.
    (2) Dependents. When a principal alien's V nonimmigrant status is 
terminated, the V nonimmigrant status of any alien listed as a V-3 
dependent or who is seeking derivative benefits is also terminated.
    (3) Appeals. If the denial of the immigrant visa petition is 
appealed, the alien's V nonimmigrant status does not terminate until 30 
days after the administrative appeal is dismissed.
    (4) Violations of status. Nothing in this section precludes the 
Service from immediately initiating removal proceedings for other 
violations of an alien's V nonimmigrant status.
    (k) Naturalization of the petitioner. If the lawful permanent 
resident who filed the qualifying Form I-130 immigrant visa petition 
subsequently naturalizes, the V nonimmigrant status of the spouse and 
any children will terminate after his or her current period of admission 
ends. However, in such a case, the alien spouse or child will be 
considered an immediate relative of a

[[Page 383]]

U.S. citizen as defined in section 201(b) of the Act and will 
immediately be eligible to apply for adjustment of status and related 
employment authorization. If the V-1 spouse or V-2 child had already 
filed an application for adjustment of status by the time the LPR 
naturalized, a new application for adjustment will not be required.
    (l) Aliens in proceedings. An alien who is already in immigration 
proceedings and believes that he or she may have become eligible to 
apply for V nonimmigrant status should request before the immigration 
judge or the Board, as appropriate, that the proceedings be 
administratively closed (or before the Board that a previously-filed 
motion for reopening or reconsideration be indefinitely continued) in 
order to allow the alien to pursue an application for V nonimmigrant 
status with the Service. If the alien appears eligible for V 
nonimmigrant status, the immigration judge or the Board, whichever has 
jurisdiction, shall administratively close the proceeding or continue 
the motion indefinitely. In the event that the Service finds an alien 
eligible for V nonimmigrant status, the Service can adjudicate the 
change of status under this section. In the event that the Service finds 
an alien ineligible for V nonimmigrant status, the Service shall 
recommence proceedings by filing a motion to re-calendar.

[66 FR 46702, Sept. 7, 2001]